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Separation of Powers, Essential to Liberty, Is Under Attack by John C. Eastman

A Speaker Must Be a Member of the House

Newt Gingrich or Mitt Romney for Speaker? Balderdash!

David F. Forte October 13, 2015
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Since 1377 when the Rolls of Parliament noted that the House of Commons had a “Speaker,” it has been unbroken tradition, whether in England or the United States, that the Speaker has been a member of the body that has chosen him. 

In England, the King used to be able to consent to the nomination of Speaker, and in Tudor times, when the crown was seeking to become like France, the King used his threat of veto to influence who would be the Speaker. But the Speaker was still drawn from the House.

By the end of the Eighteenth Century, Parliament had wrested complete control of the choice of Speaker to itself. In fact, the last time a King attempted to veto the choice of Speaker for political reasons was over a century earlier in the 1600s. But just when Parliament had won the battle, the role of the Speaker of the House of Commons changed. Previously, it had been a post of significant power. He could determine what bills would come to the floor for a vote, and he was often the person who represented Parliament’s position to the King. But after the eighteenth century, the Speaker’s function devolved into something like an umpire over the debates. In contrast, the American Speaker of the House has, from the very beginning, been an office of great power and influence and has remained so.

In the American states after independence, the Speaker was always a member of the assembly. The Massachusetts constitution of 1780, written by John Adams, was highly influential in the drafting of the federal Constitution in 1787. The Massachusetts constitution declared, “The House of Representatives…shall choose their own speaker.”

The Articles of Confederation declared, “The United States in Congress assembled shall have authority… to appoint one of their number to preside,” codifying the unbroken practice. In the Constitution, however, there is only the more pithy “The House of Representatives shall chuse their Speaker,” omitting “one of their number” from the Articles of Confederation, or “choose their own speaker” from the Massachusetts constitution.

From this tiny textual lacuna, some would conclude that the Speaker need not be a member of the House. But the text of the Constitution was intentionally made more concise from the Articles of Confederation. That was the genius of Gouverneur Morris, who, as chair of the Committee on Style at the Constitutional Convention, shaped such an elegant document. Article IV noting the Privileges and Immunities of citizens was a similar condensation of Article IV of the Articles of Confederation.

Genuine originalism looks to the contemporary understanding of the text of the Constitution, including what was left out. In the carefully crafted separation of powers, the framers made sure that each branch of government, and each part of the national legislature, would be drawn from a different constituency. The House of Representatives represented the people as a whole. It would have been unthinkable for the House to have broken centuries of practice and appoint a person who had not been elected by the people to what had immediately become a powerful position.

Newt Gingrich and Mitt Romney can be in the House of Representatives—but in the galleries, not the Speaker’s chair.

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